Revisitar processos, redefinir direitos: processos de levantamento de interdição-inabilitação (2010-2015)

Abstract

Background: In Portugal, the restriction of Civil Rights on account of incompetence due to mental illness is achieved through two institutes, “Inabilitacao” (similar to a limited guardianship or conservatorship) and “Interdicao” (similar to general guardianship). These processes collide with individual freedom and fundamental Rights. The aim, instead of punishment, is the protection of the incompetent adults, seeking the maximum preservation of competence and proportionality between the implemented measures and the degree of competence. In psychiatric evaluations of conservatorship and guardianship procedures, which have increased in Portugal during recent years, expert responsibility has increased, because - since 2013 - the Judge only intervenes directly (through judicial interrogation) when the action is contested, which doesn’t happen frequently.Aims: To review the concepts of “Inabilitacao” and “Interdicao” (concepts similar to limited and general guardianship) and the mechanisms to modify or terminate them. To explore the Portuguese reality regarding the requests for modification of the conservatorship/guardianship sentences made in the last 6 years, identifying the personal motivations of the applicants for such requests and extracting the clinical and technical reasons that led to the modification of the civil restrictions.Methods: Retrospective descriptive study. The official judicial statistics were consulted and the collaboration of the Portuguese Superior Council of Magistrates (CSM) was obtained, allowing identification and consultation of the “Inabilitacao” and “Interdicao” cases that were the subject of pleads for termination.Results and Conclusions: The official statistics of the period under review indicated the existence of 43 concluded pleads for termination. However, of the 23 National “Comarcas” (judicial counties) contacted by the CSM by our request, only 5 answered, regarding 8 actions, of which only 6 were concluded and were able to be analysed. The original actions resulted in 4 “Interdicao” sentences and 2 “Inabilitacao” sentences. After the termination procedures, only 1 case maintained a general guardian with the remaining cases having now a limited guardian (3) or being free of restriction (2). From the technical methodology point of view, it was verified that the interview of family member / significant person was not mentioned or carried out in 7 of the 12 examinations, that in 4 of the 12 expert psychiatric reports there was no reference to clinical documents attached to the process and that in 5 occasions no additional diagnostic exams were ordered. Competence should be viewed as a potentially dynamic variable. The analysis of the expert evaluations highlights the paucity of collateral information (on severity, irreversibility or actual degree of incapacity), the role of dysfunctional family relationships (which, as altered, have resulted in a substantial improvement in competence) and the beneficial effects of support (with positive impact on function and competence).